Lochan Prasad Katare vs Keshav Singh and Others

Heard on I.A. No. 2579/2013, an application for condonation of delay. In the present case, there is a delay of 160 days in filing the review petition. The petitioner has specifically pleaded in the petition that no notice was served on the petitioner of the first appeal and he came to know about the judgment and decree when execution proceedings were filed and thereafter he obtained the certified copy of the judgment.

We have considered the merits and held that a substantial injustice has been caused to the present petitioner. Hon''ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, has held as under in regard to the facts which could be taken into consideration for the purpose of condonation of delay.

From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

Consequently, the application is hereby allowed and the delay in filing the review petition is hereby condoned.

Heard on merits.

This review petition has been filed by the petitioner for review of the judgment dt. 23.01.2013 passed in F.A. No. 278/2011.

The respondents No. 1 to 4 filed a suit for specific performance of contract and permanent injunction against the petitioner. They pleaded that the petitioner was the owner of 1/2 portion of the land area 121 bigha situated at village Ohadpur, Patwari Halka No. 42, Tahsil and District Gwalior. On 23.2.1999, he entered into an agreement to sell the lands in a consideration of Rs. 20 lacs. The petitioner/defendant No. 1 received an advance of Rs. 5 lac at the time of execution of agreement. It was further agreed that rest of the amount of Rs. 15 lacs shall be paid at the time of execution of sale deed. It was further agreed that the sale deed shall be executed after partition. The liability of partition shall be of the petitioner. The defendant shall be liable to execute the sale deed after partition or after five years from the date of agreement. The plaintiffs pleaded that the defendant/petitioner did not execute the sale deed.

Written statement was filed on behalf of the present petitioner/defendant No. 1, in which he pleaded that the defendant had admitted the fact of execution of agreement and received an amount of Rs. 5,00,000/-, however, the petitioner/defendant No. 1 further pleaded that the plaintiffs did not pay the amount, which was required for completion of partition proceedings, hence, he did not execute the agreement.

Plaintiffs/respondents No. 1 to 4 and defendant/petitioner filed an application for compromise and on the basis of the aforesaid compromise application, the trial court decreed the suit and passed the decree of specific performance of contract.

When the respondent No. 5 came to know about the aforesaid judgment and decree passed by the trial court, it filed an application before the court under order 21 Rule 97 read with Section 151 of CPC. It pleaded that the decree obtained by the defendant and present petitioner was illegal and void and it was obtained by playing fraud. The petitioner executed a registered agreement on 19.1.2000 in favour of the respondent Society and thereafter on 13.12.2000 he executed the registered sale deed of the lands in favour of the society. Thereafter, the name of the society was also mutated in the revenue record and the society was in possession over the lands. The society was not made party in the suit proceedings and thereafter the judgment and decree had been obtained on the basis of compromise. Earlier to this, Mr. Lochan Prasad Katare, the present petitioner had already executed the sale deed and sold the land in favour of the society, hence, he was not in a position to execute the compromise. The trial court vide order dt. 30.8.2011 passed in MCC No. 7/2010 allowed the application filed by the respondent No. 5 on the ground that the respondent No. 5 was not added as party in the Civil Suit No. 23A/2006, in which the present petitioner and respondents No. 1 to 4 had entered into a compromise, hence, the judgment and decree passed by the trial court is not binding on the respondent No. 5.

Mr. Lochan Prasad Katare also filed a civil suit (No. 62A/2009) against respondent No. 5 - Cooperative Society and Mr. M.S. Ghuraiya. He pleaded in the aforesaid suit that he was the owner of the half portion of the suit land area 60 bigha 19.5 biswa situated at village Ohadpur, Tahsil and District Gwalior. He purchased the aforesaid land by registered sale deed dt. 4.8.1969 from Chandrashekhar Sharma S/o late Heeralal Sharma. The society did not get any right of ownership on the basis of sale deed in regard to the aforesaid land. Subsequently, he withdrew the aforesaid suit and the trial court vide judgment and decree dt. 22.12.2010 passed in Civil Case No. 62A/2009 dismissed the suit filed by the present petitioner Lochan Prasad Katare.

Against the order passed by the trial court dt. 30.8.2011, by which the trial court allowed the application filed by respondent No. 5 under Order 21 Rule 97 of CPC, the respondent No. 1 Keshav Singh filed First Appeal No. 278/2011 before this court.

On 1.10.2011, the court issued notices to the respondents on admission and I.A. No. 4086/2011 in regard to application for grant of interim relief. Thereafter the case was listed on 28.3.2012 and the court again issued notices to respondents No. 1 to 3 and 5 by ordinary post as well as by registered post. No notice was issued again to the present petitioner and the court ordered for listing of the case after service of notice. Thereafter, the case was listed on 15.05.2012. On the aforesaid date, appeal was admitted for hearing and it was listed for final hearing in the second week of July 2012 and the case was heard finally on 18.1.2013. Nobody appeared on behalf of the present petitioner in the appeal.

The court vide judgment dt. 23.1.2013 allowed the appeal and set aside the order passed by the trial court. Against the aforesaid judgment, a review petition was filed by the respondent No. 5, that has been dismissed.

It is also a fact that Mr. Dinesh Agrawal and Mr. Sachin Garg, respondents No. 2 and 5, also filed F.A. No. 91/2012 against the same order passed by the trial court. That appeal has been dismissed by the learned Single Judge vide order dt. 5.8.2013. Following order has been passed by the court in the aforesaid appeal:--

Despite there being direction vide order dated 28/3/2012, till date process fee has not been paid, yet the counsel for appellants is heard on I.A. No. 1253/2012, an application u/s 5 of the Limitation Act seeking condonation of delay caused in filing the appeal, however, learned counsel could not assign sufficient ground for causing such an inordinate delay of 113 days in filing the appeal. Consequently, this appeal is hereby dismissed as time barred.

The present review petition has been filed by the petitioner (respondent No. 4 in F.A. No. 278/2011) on the ground that he was not served neither he was heard by the court. His right has been adversely affected. It is pleaded by the present petitioner/respondent No. 4 in the First Appeal that he did not file any application for compromise neither he entered into compromise with the respondent No. 1 before the trial court and the judgment and decree passed by the trial court in regard to the specific performance was obtained by playing fraud, hence, the judgment and decree are liable to be reviewed.

Learned senior counsel appearing on behalf of the petitioner has contended that no notice was issued to the petitioner at the time of final hearing of the appeal. The petitioner did not receive the notice, hence, nobody appeared on behalf of the petitioner. It is further contended that fraud has been played with the petitioner and the valuable land of the petitioner has been taken away by the respondent No. 1. The petitioner already sold the land before passing the decree in favour of respondent No. 5 Society and the society is in possession of the land and the name of the society was also mutated in the revenue record. Hence, no compromise decree could be passed by the trial court.

Learned counsel appearing on behalf of the intervener has contended that Lochan Prasad Katare claimed the right of ownership on the basis of the sale deed executed by the intervener Mr. Chandrashekhar Sharma. However, the present intervener did not sell any land to Mr. Lochan Prasad Sharma and a Civil Suit No. 6A/2010 on behalf of the intervener is pending before the learned Additional District Judge, Gwalior in this regard.

Learned counsel appearing on behalf of the respondent No. 1 vehemently opposed the review petition. He submitted that a notice was issued by the court and it was served on the respondent No. 1, hence, he did not appear before the court. Hence, the court has rightly passed the judgment. Learned counsel further submitted that review petition filed on behalf of the present petitioner is not maintainable because the petitioner has a remedy to file an application under Order 41 Rule 21 of CPC. He has further submitted that the present petitioner himself filed an application for compromise and the judgment and decree is based on compromise. Hence, the judgment and decree passed by the court could not be interfered and the present petitioner was negligent in pursuing the proceedings. Review petition filed on behalf of the respondent No. 5 has been dismissed by this court and against that an SLP has been filed by respondent No. 5 before the Hon''ble Supreme Court.

The question for consideration before this court is that whether the present review petition is maintainable or whether it could be entertained in the facts and circumstances of the case.

It is a fact that the judgment and decree of specific performance was passed by the trial court on the basis of compromise entered into between the petitioner and respondents No. 1 to 4 before the trial court. The suit before the trial court for specific performance of contract and permanent injunction was filed by respondents No. 1 to 4 on 6.2.2006. In the aforesaid suit the respondent No. 5 was not a party. The present petitioner filed written statement on 1.7.2006 and thereafter an application was filed for compromise on 31.7.2006 and the matter was compromised by the trial court on 3.8.2006 and the decree was passed.

The present petitioner executed a registered sale deed on 13.12.2000 in favour of the respondent No. 5 Society. Thereafter, the name of the society was also mutated in revenue record. The society is in possession over the suit land. The respondent No. 5 society was not made party in the suit proceedings. It means that at the time of passing of the decree by the trial court of specific performance on the basis of compromise entered between the petitioner and respondents No. 1 to 4, the present petitioner was not the owner of the land because he had executed a sale deed in favour of respondent No. 5. An application for compromise was also filed on 31.7.2006. On that date also he was not legal owner of the lands because he had already executed sale deed in favour of the society. He himself pleaded in this petition that the judgment and decree of specific performance was obtained by playing fraud. Subsequently he filed a suit against the society, which was also withdrawn and the judgment and decree has been passed. He filed an affidavit before the trial court in MJC No. A/2007, which was registered on the basis of an application filed by the respondent No. 5 that a fraud was played with him and by keeping him in dark compromise was obtained, however, he had not executed any agreement to sell in favour of respondent No. 1 and he had sold the lands in favour of respondent No. 5.

From the aforesaid facts of the case, it is clear that the interest of the petitioner has been adversely affected. He was required to be heard by the court before passing the judgment and decree because he was the owner of the land.

As mentioned above, initially this court in F.A. No. 278/2011 issued notices on admission on 1.10.2011. The court passed the following order:

Shri N.K. Gupta, Advocate for the appellant.

Issue notice to the respondents on the question of admission and I.A. No. 4086/11 on payment of PF within seven working days, failing which this First Appeal will stand dismissed without reference to the Court.

In the mean time, till the next date of hearing status-quo in regard to the possession of the disputed property will be maintained by the parties.

C.C. as per rules.

Thereafter the case was listed on 28.3.2012. The court passed the following order.:--

Shri N.K. Gupta, Advocate for the appellant.

Learned counsel for the appellant submits that respondents No. 1 to 3 and 5 are avoiding service of notice, therefore, fresh notice by ordinary mode as well as by RAD post be issued to them.

Issue notice to the respondents No. 1 to 3 and 5 by ordinary mode as well as by RAD post on payment of fresh process fee within a period of seven working days from today. Notice be made returnable within three weeks

List immediately after service of notice.

IR to continue till next date of hearing.

Thereafter the case was listed on 15.5.2012. The court passed the following order:--

Mr. N.K. Gupta, Advocate for the appellant.

Mr. R.K. Soni, Advocate for the respondent No. 1.

Mr. Raja Sharma, Advocate for the respondent No. 3.

Mr. Soni submits that he has filed Power on behalf of the respondent No. 1 who is contesting party in the present case.

Heard on admission.

Admit.

Let record of the trial Court be called for.

List for final hearing in the second week of July, 2012.

I.R. shall continue till next date of hearing.

It is clear from the aforesaid order sheets that the appeal was admitted for hearing on 15.5.2012 and on the same day the date for final hearing was fixed by the court and the case was heard finally on 18.1.2013.

Initially when the notice for admission was issued, as per the report of the Process Server, which is in the record, the process server tried to serve the notice on the present petitioner on 16.11.2011. As per his noting, the present petitioner was not present, hence, the notice was served on his son Raju Katare. Admittedly, nobody appeared on behalf of the present petitioner at the time of final hearing of the appeal.

Order 41 of CPC prescribes procedure about the appeals from the original decree. In accordance with the Order 41 Rule 11 of CPC, the court has power to dismiss appeal without sending notice to Lower Court. Order 41 Rule 12 of CPC prescribes day for hearing appeal and Order 41 Rule 14 of CPC prescribes procedure in regard to publication and service of notice of day for hearing of appeal. The aforesaid provisions of Order 41 Rules 12 and 14 of CPC are as under:--

Day for hearing appeal--(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.

(2) Such day shall be fixed with reference to the current business of the court.

Publication and service of notice of day for hearing appeal.--(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

From perusal of the Order 41 Rule 14 CPC it is clear that the notice of the day fixed under rule 12 and the notice shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer. In the present case, the appeal was admitted for hearing by the court vide order dt. 15.5.2012 and on the same day it was fixed for final hearing in the second week of July 2012 and the case was heard on 18.1.2013. After admission of the appeal no notice was served on the respondent for hearing of the appeal. However, Order 41 Rule 14 of CPC mandates that the notice shall be served on the respondent or his pleader in the appellate court in the manner provided for the service on a defendant of a summons to appear and answer. It means that the appeal was heard by the court without following the mandatory provisions of Order 41 Rule 14 of CPC.

By following this procedure, the valuable right of the petitioner has been negativated because the petitioner specifically pleaded that he did not execute compromise. He has specifically filed an affidavit before the trial court that the compromise was obtained by playing fraud. Apart from this, the petitioner had already executed sale deed in favour of respondent No. 5 on 13.12.2000. Hence, he was not in a position to enter into compromise in regard to same land with respondent No. 1 to 4 until and unless the sale deed be set aside by the competent court. Admittedly, before the trial court the respondents No. 1 to 4 did not make respondent No. 5 as party and the fact that the present petitioner had sold the property in favour of respondent No. 4 was not brought on record while passing the decree of specific performance on the basis of compromise.

Hon''ble Supreme Court in Kamlesh Verma Vs. Mayawati and Others, has held as under in regard to maintainability of the review petition after considering the earlier judgments, it is not necessary to consider all the judgments:--

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason. The words "any other sufficient reasons" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule." The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

In our opinion, the mandatory provision of Order 47 Rule 14 of CPC has not been followed or has been bypassed. The petitioner was not served before hearing of the appeal. The earlier judgment and decree of specific performance was obtained by the respondents No. 1 to 4 on the basis of compromise. The petitioner denied the factum of compromise in the proceeding registered on behalf of the application filed by the respondent No. 5 (MCC No. 7/2010). Hence, it appears that the respondents No. 1 to 4 anyhow tried to grab the lands bypassing the normal procedure of law. Apart from it, intervener also filed a suit from whom the petitioner purchased the land by registered sale deed.

Hon''ble Supreme Court further in Union of India (UOI) Vs. Sandur Manganese and Iron Ores Ltd. and Others, has held that non-service of notice in SLPs subsequently converted into civil appeals on the respondent and pronouncing the judgment adversely affected interest of the parties to the proceeding is contrary to the principle of natural justice and review petition is maintainable. Hon''ble Supreme Court has held as under:--

The principles of natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice.

In the case on hand, though during the course of hearing, a reference was made as to the presence of the learned Attorney General by the learned Senior Counsel for the respondents, as mentioned above, we are satisfied that the Union of India was not given an opportunity to represent its case due to mistake on the part of the Registry. Applying the well-settled principles governing a review petition and giving our anxious and careful consideration to the facts and circumstances of this case, we have come to the conclusion that the review petition filed by the Union of India should be admitted on the basis of the above reasoning.

In this view of the matter, in our opinion, the review petition filed by the petitioner is maintainable.

The argument advanced by the learned counsel for the respondent No. 1 that the petitioner has a right to file an application under Order 41 Rule 21 CPC could not be accepted because the aforesaid provision is applicable when a person is proceeded ex parte. In the present case, the court has not proceeded ex parte against the petitioner but assumed that when notice on admission was issued it was served. Besides this, the provision of Order 41 Rule 14 CPC has not been followed. Hence, in our opinion, the petitioner could not avail the remedy under Order 41 Rule 21 CPC.

Another argument advanced by the learned counsel for respondent No. 1 that the review petition by the respondent No. 5 has been rejected and an SLP is pending on behalf of the respondent No. 5 before the Supreme Court, hence, the review petition is not maintainable is also liable to be rejected because Order 47 Rule 1(2) prescribes that a party, who is appealing from a judgment may apply for review of the judgment notwithstanding pendency of appeal by some other person. It would be applicable only when the ground is common. In the present case the ground is not common. In the present case the mandatory provision of Order 41 Rule 14 of CPC has been violated and no notice was served on the petitioner by the court. The relevant provision of Order 47 Rule 1(2) is as under:- A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review.

Explanation.--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

Consequently, the review petition filed by the petitioner is hereby allowed. The judgment and decree passed by the court is hereby set aside. First Appeal No. 278/2011 is restored to file and it be heard in accordance with law. No order as to costs.